Fox v. Thomaseec ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCES L. WAYMON FOX,
Plaintiff-Appellant,
v.
KATHY THOMASEEC, d/b/a Touch of
Grace Personal Home Care,
Owner/Director; WANDA SHEPHERD,
a/k/a Miss Smith, Kathy
Thomaseec's "SIC"; CARROL
WALTER WAYMON, Brother of
plaintiff; Uncle of Bill Waddell and
Rachell Waddell Addison; WILLIAM
No. 98-2800
ISAAC WADDELL, JR., a/k/a Bill,
Nephew of plaintiff; RACHEL ANN
WADDELL ADDISON, Niece of
plaintiff; MARGARET WADDELL, Wife
of William Waddell; LARRY NELSON,
Son of Margaret Waddell; SUSAN J.
HALL, Attorney at Law; DAVID
HALL, Husband and partner of
Attorney Susan Hall; CLINTON
WILBURN, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-98-376-5-H)
Submitted: April 27, 1999
Decided: May 18, 1999
Before WIDENER and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
_________________________________________________________________
COUNSEL
Frances L. Waymon Fox, Appellant Pro Se. Steven Craig Lawrence,
ANDERSON, BROADFOOT, JOHNSON & PITTMAN, Fayette-
ville, North Carolina; Carmen J. Battle, Fayetteville, North Carolina;
Susan J. Hall, Fayetteville, North Carolina; David Hall, Fayetteville,
North Carolina; Mark E. Anderson, PATTERSON, DILTHEY,
CLAY & BRYSON, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Frances Fox appeals an order of the district court dismissing this
action for lack of subject matter jurisdiction. Fox filed her action
under 28 U.S.C.A. § 1332(a)(1) (West 1993 & Supp. 1998), asserting
diversity of citizenship. As Fox did not bear her burden of establish-
ing complete diversity, we affirm the district court's order of dis-
missal. See Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 377
(1978) (statute requires complete diversity and is strictly construed).
Fox also appeals the district court's order granting defendants'
request for costs and attorney's fees under Fed. R. Civ. P. 54(d). An
award of costs to the prevailing party is appropriate under Fed. R.
Civ. P. 54(d)(1). Under Fed. R. Civ. P. 54(d)(2)(B), a party requesting
attorney's fees must specify the statute, rule, or other ground that enti-
tles him to an award of the fees. The defendants in this case did not
so specify.
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Under the American Rule, each party bears the costs of its own
attorneys, and attorney's fees are generally not a recoverable cost of
litigation unless a statute or agreement provides otherwise. Key
Tronic Corp. v. United States, 511 U.S. 809, 814-15 (1994). In diver-
sity cases, state law is ordinarily followed to determine whether fees
are recoverable. Culbertson v. Jno. McCall Coal Co., 495 F.2d 1403,
1405-06 (4th Cir. 1974). The general rule in North Carolina is that "a
successful litigant may not recover attorney's fees, whether as costs
or as an item of damages, unless such a recovery is expressly autho-
rized by statute." Stillwell Enters., Inc. v. Interstate Equip. Co., 266
S.E.2d 812, 814 (N.C. 1980). As the defendants cited to no statutory
authority to support their request for attorney's fees, we hold that the
district court erred in granting the requested fees. Because the defen-
dants' itemized costs appear to be mixed in with the fee charges, we
vacate the award and remand to the district court for further consider-
ation of an appropriate award of costs. We deny the requests for sanc-
tions against Fox on appeal. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
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